Here's the real problem with the Trump Russia investigation

Dan McLaughlin
Rep. Elijah Cummings and Rep. Adam Schiff
Getty Images

The controversies over President Trump's firing of FBI director Jim Comey, and over the appointment of a special counsel to oversee the Russia investigation, are yet another reminder that our existing process for investigating political figures is broken. To fix that process going forward, Congress should create a new cabinet-level inspector general charged with handling investigations and prosecutions of political cases, including those involving the president and other high executive-branch officials.

In general, the executive branch needs new cabinet departments like it needs a hole in the head, but this one would actually do some good without significantly expanding the federal government. And unlike prior innovations in this area, it could be designed to work comfortably within the framework that the Constitution provides for the enforcement of the law.

Stepping back from the immediate controversies, both parties should be able to agree on how investigations of political figures should work. Ideally, such investigations should aim to get to the bottom of things as quickly as is feasible, punish wrongdoers, bulldoze delaying tactics in legitimate cases, dispense with trivial offenses, and generally minimize the length of time that major government officials serve under a cloud of suspicion. Worse yet is when such a cloud hangs over the investigation itself. Unfortunately, none of the solutions tried over the past several decades have met those tests.

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Taking care

The Constitution charges the president — and no one else — with the duty to "take Care that the Laws be faithfully executed." It says nothing about an attorney general, a Department of Justice, or a Federal Bureau of Investigation, all of which were created by Congress to help presidents carry out this core constitutional duty. All are directly accountable to the president.

Normally, when an administration is functioning as intended, the president sets a policy for the AG and the FBI that they then translate into action in individual cases — which are handled away from the direct interference of elected officials. If the president is dissatisfied with his subordinates, he can fire them. The FBI director is nominally appointed for a ten-year term, but there is no restriction on when, how, or why he can be fired.

Historically, dating back to 1875, some high-profile cases were investigated by a "special prosecutor." Special prosecutors were simply Justice Department employees tasked with conducting a particular investigation; their "special" designation was a matter of political norms rather than a protected legal status. The public nature of these appointments and the sensitivity of the task provided a political deterrent to firing them, but the president retained that power and sometimes used it. Three of the first ten special prosecutors appointed before 1978 were fired, including the very first one, by Ulysses S. Grant. Grant fired a special prosecutor for criticizing the president in an argument to a jury; Harry Truman's attorney general fired one for an overly intrusive investigation (Truman, who disagreed, reacted by sacking the AG); and Richard Nixon famously had Archibald Cox fired at a critical juncture in the Watergate investigation.

In 1973, Nixon's AG and deputy AG both refused to fire Cox, so Nixon fired the former and saw the latter resign before he got Solicitor General Robert Bork to carry out the order. The furor over the firings further eroded Nixon's position, eventually leading to his resignation the following summer. Five years later, memories of this "Saturday Night Massacre" led Congressional Democrats to enact the Ethics in Government Act of 1978, which created the independent-counsel statute. Eighteen independent-counsel investigations would ensue over the next two decades. The cure proved worse than the disease.

The Starr chamber

If special prosecutors had been too weak, the independent counsel was too strong. Once Congress requested an independent counsel, the executive branch was required to apply for the appointment of one unless the attorney general could not find "no reasonable grounds" on which to investigate, a politically if not legally impossible standard to meet. Unlike a special prosecutor, an independent counsel was appointed by a panel of judges, not the president. And the president could remove an independent counsel only for cause; no president ever tried.

As Justice Scalia memorably described the machinery the independent-counsel statute had created, a decade after it passed:

The independent counsel thus selected proceeds to assemble a staff. . . . In the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad — and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same independent counsel. . . .

The mini-Executive that is the independent counsel . . . operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.

Scalia concluded that the independent counsel was unconstitutional because it stripped the president of control and accountability over taking care of the execution of the laws, and warned that "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm." Sadly, the rest of the Court ignored his warning.

But experience prevailed where reason had not. Six years after Scalia's warning, a man with no experience as a prosecutor — Kenneth Starr — was chosen to run an independent-counsel investigation, and the investigation's length, expense, focus, and lack of presidential control all undermined the public legitimacy it needed. The public didn't buy that the investigation was worth grinding the government to a halt, and the results of that investigation didn't stick when the impeachment of Bill Clinton was tried in the Senate. In the aftermath of that failure, the statute was allowed to lapse by bipartisan consent in 1999.

After the fall

The special prosecutor made a comeback under George W. Bush, when Patrick Fitzgerald investigated the outing of Valerie Plame without much interference from the White House and ended up convicting an aide to Vice President Cheney for perjury and related offenses. But the decision to appoint Fitzgerald was made only after Attorney General John Ashcroft recused himself, by his then-deputy, James Comey.

And the past two administrations have been tangled in their own shoelaces over conflicts. Obama's attorney general, Loretta Lynch, didn't recuse herself from the Hillary e-mail-server investigation after her infamous tarmac meeting with Bill Clinton. Lynch publicly stated she would defer to Comey (by then the FBI director) while more or less signaling that a recommendation for an indictment would be unwelcome, setting in motion the chain of events that forced Comey to explain his decisions to the public instead of making a recommendation to the Department of Justice. By the time Comey left office, the twists and turns of the email probe had destroyed both sides' faith in him.

In this administration, Jeff Sessions recused himself from the FBI's counterintelligence investigation into Russian meddling in the 2016 election and promised the Senate he'd stay out of follow-up matters related to the Hillary investigation. Yet Sessions finds himself under criticism now for being involved in the review and firing of Comey, given that the review focused on the e-mail investigation and came while Comey was managing the Russia probe. Sessions was apparently enlisted to this task on the direct orders of President Trump, who has since admitted that the review was window dressing for Trump's main reason for firing Comey, his frustration with Comey's handling of the Russia probe. Which is how we ended up with another special prosecutor, former FBI director Robert Mueller.

A better way

It doesn't have to be this way; it doesn't have to be any of these ways. A new, separate inspector general, leading a Department of Public Integrity, would take an increasingly troublesome burden off the back of the Justice Department while avoiding the inherent flaws of the special prosecutor and the independent counsel.

Structurally, to give the inspector general and Department of Public Integrity a critical mass of personnel and ongoing caseload, Congress could begin by transferring into it the Public Integrity Section of the Justice Department, which currently handles federal criminal investigations and prosecutions involving state and local governments. It could also include the inspectors general of each cabinet department, who already conduct civil probes but have something of a checkered record and could probably benefit as well from the institutional cohesion of a department devoted wholly to investigating the government. The department could also be given its own investigative arm, either a new one or one staffed by agents on rotation from the FBI.

Doing so would give the inspector general and Department of Public Integrity the institutional perspective and permanent staff that independent counsels and special prosecutors lacked. Unlike an independent counsel, the inspector general and his or her staff would not be unemployed if they closed their investigation. Their budget would be set by Congress, like any other federal agency, based on the overall annual caseload.

An inspector general and Department of Public Integrity would not be a complete solution — none exists outside the ballot box — to a president bent on thwarting investigations. But because the inspector general would be hired specifically to uphold impartial enforcement of the law against high public officials, presidents would face greater pressures to nominate someone above partisanship and ideology (no Eric Holder, no Jeff Sessions, no John Ashcroft, no Janet Reno). The Senate would owe the president's inspector-general nomination less deference than is customary for cabinet positions (the statute could even be drawn to require 60 votes for confirmation), and there would be greater political consequences for firing an inspector general. Congress could reinforce both the perception and reality of day-to-day independence with a truly radical step: place the headquarters of the department and its head somewhere thousands of miles from D.C.

The inspector general could also be given a power and duty more like that of the cabinet-level inspectors general: to produce a public report at the conclusion of his investigations. Such reports allow for public accountability for misconduct that is not criminal, for exoneration of officials who did nothing wrong, and for oversight and lesson-learning. They also put pressure on investigations to reach an endpoint.

One arguable downside of a truly independent Department of Public Integrity is that, in cases involving state and local officials, it would lose some of the benefits of working with local U.S. Attorney's Offices that know the judges, juries, and other local conditions. For better and worse, prosecutions of state officials has been a major career-builder for politically ambitions U.S. Attorneys, especially blue-state Republicans (think of Chris Christie in New Jersey or Bill Weld in Massachusetts). But a department with institutionally independent leadership need not be hermetically isolated from engaging assistance from local line prosecutors.

"If men were angels," James Madison famously wrote, "no government would be necessary." No system of investigating high officials would be necessary if they were angels, and none is foolproof when they are knaves. But a permanently established inspector general and Department of Public Integrity would be a better way of regularizing the process for such investigations and restoring some level of public confidence in that process.

Commentary by Dan McLaughlin, a lawyer and contributing columnist at the National Review. Find him on Twitter at @baseballcrank.

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©2017 National Review. Used with permission.